A.S. Naidu, J.
1. The dispute in this Writ Petition is with regard to entitlement of the Petitioner to receive family pension. The Petitioner is a widow .Her husband late Syed Musraf Ali was working as a Sepoy in 120 Infantry Battalion (Territorial Army) from 21st June, 1956 till 20th June, 1971. He was assigned No. 10256910. After serving the Army for fifteen years he was disengaged. Thereafter he approached the authorities for grant of pension, but no steps were taken by the latter. His family passed their days through stringent financial difficulties. Unfortunately due to lack of food and medical care he died on 19th May, 1975 leaving behind the Petitioner as his widow and five minor children. Thereafter the Petitioner once again approached the authorities for grant of pension of her deceased husband and family pension to her. All her requests having been in vain, she had earlier approached this Court in W.P.(C) No. 4043 of 2007. The said Writ Petition was disposed of on 23rd July, 2007. This Court had directed the Chief Controller of Defence Accounts (Pension), Opposite Party No. 3, to call for the service records of the husband of the Petitioner, examine the same and pass a reasoned order with regard to entitlement of the deceased Sepoy to pension and family pension to the Petitioner. In consonance with that direction, it is averred, Opposite Party No. 2 passed an order on 20th October, 2007 (Annexure-4) stating therein that neither the husband of the Petitioner nor the Petitioner was entitled to pension/family pension. The said order is assailed in this Writ Petition on the ground that the deceased husband, of the Petitioner having served in the Territorial Army for a period of fifteen years, was entitled to receive service pension and after him the Petitioner is entitled to family pension in consonance with the prevailing rules, but then the authorities acted illegally and with material irregularity in denying the same.
3. (SIC) After receiving notice, cause has been shown by the Opposite Parties. The facts that the husband of the Petitioner had joined the Territorial Army on 21st June, 1956 and had been discharged on 20th June, 1971 are admitted. It is also admitted that he had been discharged from Army Service after serving for fifteen years. Referring to Para-132 of the Pension Regulations, 1961, it is averred that minimum fifteen years' embodied service is mandatory for earning pension. This embodied period with break in service is not counted as qualifying service for pension. According to the Opposite Parties, the deceased husband of the Petitioner had completed fifteen years of service including disembodied period and hence he had not been granted service pension on his discharge from Army Service. They have further averred that family pensions only granted to those widows whose husbands were in receipt of service pension. The deceased husband of the Petitioner having not been granted service pension, the question of family pension to the Petitioner does not arise.
4. A rejoinder to the counter-affidavit has been filed by the Petitioner. Referring to the Para-132 of the Pension Regulations of 1961 it is submitted that the minimum qualifying service for earning service pension is fifteen years and not fifteen years of embodied service as stated by the Opposite Parties. Said Para-132 reads as follows:
132. The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.
In para-5 of the rejoinder affidavit it has been averred that as per Para-132 of the Pension Regulations, 1961 minimum 15 years' qualifying service is required for earning service pension and not '15 years' embodied service'. The Petitioner has referred to letter No. l(5)/87/D(Pension/Services) dated 30th October, 1987 issued by the Government of India, Ministry of Defence in keeping with the Pension and Pensioners' Welfare Resolution No. 2/13/87-PIC dated 18th March, 1987 concerning pensionary benefits to Armed Forces personnel. The said resolution in para-8 of Part-II provides:
A reservist, who is not in receipt of service pension, shall be granted on completion of the prescribed combined colour and reserve qualifying service of not less than 15 years, a reservist pension equal to 2/3rd of the lowest pension admissible to a Sepoy, but in no case less than Rs. 375 P.M.
5. It is pertinent to mention here that no affidavit having been filed by the Opposite Parties denying the aforesaid averments made in the rejoinder of the Petitioner to their counter-affidavit, the same go non-traversed and are thus accepted.
6. Perusal of the pleadings and other materials reveal that the husband of the Petitioner had been enrolled in the 120 Infantry Battalion (Territorial Army, Bihar) on 21st June, 1956 and had been discharged there-from on 20th June, 1971 after completion of fifteen years of service on the ground 'service no longer required'. He had not been discharged on any medical ground nor on any allegation against him. It is also not the case of the Opposite Parties that there was any blemish in his service career. The Order Dated 20th October, 2007 (Annexure-4) passed by the Officiating Officer In-Charge, Records, reveals that the husband of the Petitioner had discharged 10 years colour and 5 years of reserve service in Army. Even, according to the Opposite Parties, he had rendered 11 years and 119 days of qualifying service. According to the Opposite Parties 15 years' qualifying service is required to earn pension. There was no averment that the service rendered by the deceased husband of the Petitioner was otherwise not satisfactory and/or he was medically unfit.
7. According to the Learned Counsel for the Petitioner, if there was any shortfall in the qualifying service of the deceased husband of the Petitioner, it was incumbent on the Opposite Parties to allow him to continue in service until he would have been eligible to receive pension, more so when there was no allegation against him and he had a blameless service record.
8. Thus considering that the deceased husband of the Petitioner had admittedly served for 15 years in Territorial Army, this Court feels that as a special case he ought to have been granted service pension as provided under the Pension Regulations, 1961).
9. This Court, accordingly, allows the Writ Partition and directs the Opposite Parties to sanction service pension in favour of the deceased husband of the Petitioner in consonance with the decision of the Government of India in the Ministry of Defence if there is no other impediment and disburse the entire arrears of pension to the Petitioner. The said Opposite Parties shall consider de novo whether the Petitioner is entitled to family pension and, if so, to sanction and disburse the same to the Petitioner within a period of six months of communication of this Judgment.